ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20131122
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20030222 - 20030701  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030702	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20071218	Highest Rank/Rate:  AA
Length of Service:   Year(s)     Month(s)   17 Day(s)
Education Level:  	AFQT:  46
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE

Periods of UA:   

NJP:  	SCM:  	CC:  	Retention Warning Counseling:  

SPCM:  

- 20041028: 	Article  (Disrespect toward a superior commissioned officer)
	Article  (Assaulting or willfully disobeying superior commissioned officer)
	Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
	Article  (Failure to obey order or regulation) 
	Article  (Assault, 3 specifications)
	Specification 1: Assault AN by choking him with his hand
	Specification 2: Assault LT by grabbing him violently by his lapel
	Specification 3: Assault FC2 by throwing a cup of water and a galley safe tray at him
	Article 134 (General Article, disorderly conduct)
	Sentence:  8 months (pretrial confinement: 20040426-20041027, 185 days; confinement: 20041028-20041220, 54 days) 

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	
Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant contends he was not properly diagnosed by military doctors throughout his service, and the misdiagnosis caused him to be unable to take the proper medications that led to a continuous deterioration of his conduct.
2.	The Applicant contends he was not mentally capable to stand trial.
3.	The Applicant contends he should have been sent to a medical board as his doctor requested. 

Decision
Date:  20140410		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion
As a result of the Applicant’s claim of Post-Traumatic Stress Disorder (PTSD), in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.  The Naval Discharge Review Board reviewed the Applicant’s record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or Traumatic Brain Injury.  A review of his record revealed that he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1).

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Applicant’s record of service included   for  of the UCMJ: Article 89 (Disrespect toward a superior commissioned officer), Article 90 (Assaulting or willfully disobeying superior commissioned officer), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey order or regulation), Article 128 (Assault, 3 specifications), and Article 134 (General Article, disorderly conduct).  The court sentenced the Applicant to 8 months confinement and a Bad Conduct Discharge. 
:  (Decisional) ()  .  The Applicant contends he was not properly diagnosed by military doctors throughout his service, and the misdiagnosis caused him to be unable to take the proper medications that led to a continuous deterioration of his conduct.  When reviewing a discharge, the NDRB does consider the extent to which medical problems might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  There is no documentation to indicate that the Applicant was not responsible for his actions or should not be held accountable for his misconduct.  Additionally, the Applicant’s mental competency to stand trial or misdiagnosis of mental health conditions were never raised during the Special Court-Martial, nor was there any indication that the Applicant was not competent to stand trial.  Relief denied.

:  (Decisional) ()  .  The Applicant contends he was not mentally capable to stand trial.  In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts.  As such, matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces.  The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial.  In the Applicant’s case, the Navy-Marine Corps Court of Criminal Appeals reviewed the case and affirmed the decision.  The issue of competency was never raised by the Applicant or his defense counsel during his Special Court-Martial, and there was no indication that he was not competent to stand trial.  As such, the NDRB determined clemency was not warranted on this issue.  Relief denied.

Issue 3:  (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant contends he should have been sent to a medical board as his doctor requested.  Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician.  Although recommended for a medical board, there is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was processed for a medical board by proper authority.  Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.  Finally, Department of Defense regulations provide that disciplinary separations supersede disability separations.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 19 September 2005 until 18 December 2007, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023